The purpose of this
bill is to ensure that, as far as is constitutionally and
practically possible, Australian Defence Force personnel are not
sent overseas to engage in warlike actions without the approval of
both Houses of the Parliament.

The bill is a
revised version of one first introduced into the Senate in 1985 by
Senator Colin Mason (NSW, Australian Democrats). The
improvements in this bill consist mainly of more detailed
provisions relating to emergency situations which occur when the
Parliament is not meeting and the information which is required to
be provided to the public and the Parliament.

Section 50C of the
Defence Act 1903 provides that members of the army may be
required to serve either within or beyond the territorial limits of
Australia.

The bill would
replace the section with a new section under which service of
members of the Defence Force beyond the territorial limits of
Australia in warlike actions would require the approval of both
Houses of the Parliament.

FINANCIAL
IMPACT

The bill would have
no direct financial impact.

NOTES ON
CLAUSES

Clause 1 -
Short title

This clause
provides for the short title of the bill.

Clause 2 -
Commencement

The bill would
commence on the day on which it receives the royal assent.

Clause 3 -
Schedule

This clause
provides for the effect of schedule 1, which is to repeal and
substitute section 50C of the Defence Act 1903 .

Schedule 1
- Amendments of the Defence Act 1903

Items 1 and 2 of
the schedule would repeal and substitute section 50C of the Defence
Act. It is necessary to create a new subdivision in the act,
as the current section 50C is in a subdivision which relates only
to the army (there are no corresponding provisions relating to the
navy or air force).

Proposed new
section 50C

Subsection
(1)

This subsection
replicates that part of the existing section 50C whereby members of
the Defence Force may serve within the territorial limits of
Australia.

Subsection
(2)

This subsection
provides that, with the exceptions specified in the following
subsections, members of the Defence Force may not serve beyond the
territorial limits of Australia except in accordance with a current
resolution agreed to by each House of the Parliament authorising
that service.

Subsection
(3)

This subsection
provides that, in an emergency requiring the deployment overseas of
members of the Defence Force, the Governor-General may make a
proclamation authorising that deployment. The
Governor-General would, of course, in accordance with
constitutional practice, act on the advice of the Prime Minister of
the day.

Subsection
(4)

This subsection
provides that such a proclamation be made only on the written
advice of the Prime Minister to the Governor-General explaining the
emergency and why it is not expedient to seek the authorising
resolution of each House before the deployment takes place.

Subsection
(5)

This subsection
provides for the publication of any such proclamation and advice
within 24 hours, so that the public may be adequately informed of
the emergency situation and the reasons for the deployment of
forces overseas.

Subsection
(6)

This subsection
provides that each House of the Parliament is to be supplied,
within two days after a proclamation is made, with essential
information concerning the emergency and the deployment of the
forces. This information is to be in the form of a report
containing the Governor-General’s proclamation, the advice
provided by the Prime Minister and statements of reasons for the
deployment, its legal authority, geographical extent, expected
duration and the numbers of members of the forces involved.

Subsections (7),
(8) and (9) provide for situations in which the Parliament is
not meeting when a proclamation is made. These provisions
seek to ensure that, as far as is constitutionally and practically
possible, the Parliament will be consulted at the earliest possible
time about the emergency and the deployment of the forces
overseas.

Subsection
(7)

This subsection
provides for the situation in which the Parliament is in session
(ie, the Parliament has not been prorogued under section 5 of the
Constitution) but either House is adjourned indefinitely or for
more than two days. In that circumstance, the Presiding
Officer of that House is to summon the House to meet within two
days after the proclamation is made. The subsection refers to
the Parliamentary Presiding Officers Act 1965 , which
specifies who is to exercise the statutory powers of the President
of the Senate and the Speaker of the House of Representatives when
those officers are unavailable or their offices are vacant.

Subsection
(8)

This subsection
provides for the situation in which the Parliament is not in
session (ie, the Parliament has been prorogued). In that
circumstance, a proclamation is to cease to have effect seven days
after it is made. Paragraph (a) provides for the situation of
the Parliament having been prorogued before a proclamation is made,
while paragraph (b) provides for the situation in which the
parliament is prorogued within seven days after a proclamation is
made. In both cases the proclamation ceases after seven days
(paragraph (c)) and no similar proclamation may be made until the
Parliament meets (paragraph (d)).

The effect of this
subsection is that, if the government deploys forces overseas in an
emergency while the Parliament is prorogued, and the government
intends that the deployment continue beyond seven days, the
government will be compelled to advise the Governor-General to
summon the Parliament to meet within that period to seek
parliamentary approval for the deployment.

Subsection
(9)

This subsection
provides for the situation of a proclamation being made in an
emergency situation during a general election, or close to a
general election brought about by the expiry of the House of
Representatives. When there is no House of Representatives
(ie, the House has been dissolved or has expired) there is no
opportunity for the Parliament to consider and approve or
disapprove of an overseas deployment of forces. In that
situation the executive government alone has the power to continue
a deployment brought about by an emergency. Under the
constitutional and statutory timetable for general elections, there
is a maximum period of 140 days when the country is without a
complete Parliament during a general election. This
subsection seeks to ensure that the Parliament is consulted about
such a deployment at the earliest practical time. It does
this by providing that a proclamation will cease seven days after
the day for the return of the writs for the general election.
If the government wishes to continue beyond that limit a deployment
which was initiated because of an emergency during the election
period, the government will have to advise the Governor-General to
summon the Parliament to meet within the seven day period.

Paragraph (a)
provides for the situation in which the House of Representatives
has been dissolved or has expired when a proclamation is made, ie,
the general election process has begun. Paragraph (b)
provides for the situation in which the House of Representatives
expires within seven days after a proclamation is made.
Normally, a general election begins with a dissolution of the House
of Representatives; not since the Parliament of 1907-10 has the
House been allowed to expire. If a proclamation were made
within seven days of the expiry of the House, there would probably
not be adequate opportunity for the Parliament to consider a
proclamation, and in that circumstance the proclamation would also
cease seven days after the return of the writs.

Subsection
(10)

This subsection
provides that, when members of the Defence Force are deployed
overseas in the circumstances covered by the section, the Minister
for Defence must report in writing to each House of the Parliament
every two months on the status, legality, scope and anticipated
duration of the deployment, on efforts to resolve the circumstances
requiring the deployment, and on any reasons why the Parliament
should allow the deployment to continue.

Subsection
(11)

This subsection
provides that the requirement for parliamentary approval of
overseas deployment of forces does not apply to normal, non-warlike
overseas service, consisting of attachments of Australian service
personnel to foreign forces, service in diplomatic or consular
missions, on aircraft or ships not involved in hostilities , for
educational or training purposes, or for purposes related to the
procurement of equipment or stores.